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A Court of Law, Not of Justice

IN 1972, in Furman v. Georgia, the United States Supreme Court struck down Georgia’s death penalty law as constituting cruel and unusual punishment, suggesting the end of capital punishment in America. In 1976, in Gregg v. Georgia, the Court upheld Georgia’s revamped death protocol, securing America’s ability to execute for generations to come. That’s the sum plot of A Wild Justice, but not the whole story. There are fascinating stories in the book about the horse-trading, agenda-pushing, mind-changing, and waters-testing that led to both the Court’s condemnation of capital punishment, and its volte-face. Evan J. Mandery tells these behind-the-scenes stories with impeccable research and the most meticulous play-by-play particulars. But he has a tendency to forget the frame of the game. In other words, lots of telling details, but no big-pic sense that therein lies the devil.

First, these details, less spoilers than a series of breadcrumbs. Mandery’s persistence pays off best in unspooling the particulars of the two campaigns: the first to overturn the death penalty (what we in the game simply call “death”), largely the product of a confluence of activist forces; and second, the push to reinscribe the punishment. The abolitionist forces are chronicled in a section entitled “An Audacious Idea, 1963-1971,” and include Alan Dershowitz, then Justice Goldberg’s law clerk, and who was largely responsible for Goldberg’s 1963 memorandum that first applied the Eighth Amendment to capital punishment — a radical proposition at the time. It was promptly picked up by the Legal Defense Fund (LDF), néeNAACP Legal Defense Fund, whose lawyers were first interested in the racial inequities in the use of the death penalty (the basis for a 14th Amendment challenge), but who then came to simply oppose the penalty as such. Then there were the legal cowboys, the quixotic ones who took on death as an abomination, no matter how applied, such as Anthony Amsterdam, an apparent machine unto himself, who could outwork and outthink all comers except the vagaries of the zeitgeist. Mandery spares no expense relaying the negotiations that led to Furman; the most useful part of the book may be its deep understanding that the Court is, as Mandery puts it: “nine independent law firms, which interact with one another only sporadically and clumsily, most often when a justice assigned to write the majority opinion tries to build a consensus.”

Mandery goes into the bowels of these firms, each headed by a more or less autocratic justice ruled, according to Mandery, by a transparent combination of biography and temperament. His discussion of the bookending decisions sets forth both parts of this equation in equal measure, written in a style that befits those old children’s books that had titles like “Henry Clay: Statesman and Patriot” or “George Washington: Frontier Colonel,” and had watercolors of their heroes looking offstage. Thus, we are serially treated to such nuggets as:

From humble beginnings, Byron White lived one of the extraordinary lives of the twentieth century.

Dressed in a three-piece suit tailored in London, with the gold watch chain of his namesake grandfather who had also served on the Court draped from his vest, John Harlan spoke next.

A hedonist, Marshall had always lived hard.

On the occasion of Potter’s birth, the Stewarts received a congratulatory letter from President William Howard Taft.

Which is the style throughout: one prominent LDF attorney is introduced with: “Michael Meltsner liked to gamble. Growing up in the Rockaways, and, later, Manhattan, he and his father sometimes bet on horse races and prizefights.” This biographical raison d’être is what Mandery believes leads to both the provisional abolition of capital punishment in Furman and its resurrection in Gregg. Justice Douglas, who sounds like nobody’s best friend (“For starters he habitually exaggerated and lied.” “[He] sometimes hit his wives.” — and is that qualifier, strictly speaking, necessary?), was assigned to write an opinion whose majority was utterly dependent on diplomacy. Furman was consequently tatted together from an uneasy coalition of justices, none of whose views coincided except to the extent necessary to cobble together a provisional condemnation of Georgia’s death penalty circa 1972. Even an extended discussion of the extended discussions on whether capital punishment serves a deterrent effect (some sociologists thought yes, some no, though the consensus was probably not) doesn’t do much to explain the actual outcome of the case. What the majority in Furman did was not to outlaw capital punishment, but to suggest that capital punishment was proper, provided there were objective guidelines in place for its administration. Thus, as Mandery explains, the problem was not so much that the Court changed its mind in Gregg, but rather that it was never of a mind to change.

Now for the devilish bits. For all his legal historical acumen and research treasures, Mandery seems blindingly myopic when it comes to history itself. The most grating parts of A Wild Justice are the historical developments left out, or viewed like a datebook, that is, at a glance. Unlike the litany of great men, there is no list of events that Mandery sees as taking a toll on the Court’s decision-making. The Vietnam War doesn’t even make it into the index. While Mandery addresses the effect of other Court decisions on the death penalty debate, especially abortion and school integration (particularly busing), there is no larger sense of power at play in the book. It feels painfully reductive to portray the Black Panthers as a product of the failure of integration policies, or the backlash following Roe v. Wade as predicated on the Court having “intruded yet again on an issue of conscience.” After all, Angela Davis of “Free Angela Davis” was charged with a capital offense, and the Baader-Meinhof Group cited the Watts Riots as a seminal influence. For 1972 was not just the year after 1971, it was a year when there was a palpable prospect of revolution. And violence was perpetrated as frequently for as against the government (see Kent State, see the Weathermen, see both sides of the Vietnam War). When death was not, as the legal abolitionists argued, “different,” but very ordinary, and often state-sponsored.

Toward the end of the book, Foucault makes a by-then-welcome appearance (though sadly not introduced with something like: “Michel Foucault embraced tradition and change. Growing up in Poitiers, home to the oldest Christian church in France as well as many romantic cafés, young Michel was surrounded by superego and sexuality”), with Mandery quoting him: “What is most dangerous in violence is its rationality.” A Wild Justice suffers from the same sort of violence, the kind that forgets that the law itself is founded on violence. As Walter Benjamin (also absent) argued in his 1921 essay, “Critique of Violence,” “The crucial intersection between violence and law occurs in capital punishment.” Any critique of violence is fundamentally a critique of law. The death penalty used to be imposed for trivial crimes, Benjamin notes, and “[i]n this fact, the putrescence of law reveals itself.” It is not the triviality of the offense that is the issue, however, but the fact that death can be administered — that it is a matter of administration. Which, of course, was the path the Court took in 1976, by approving capital punishment as objectively administered.

In other words, the problem with objective guidelines is that they, like the lives they regulate, do not spring fully formed from Zeus’ head. When Mandery reiterates the pro-death argument that, without the death penalty, there would be no way to adequately punish Hitler, he does so without context or critique — not even the question famously faced by Arendt in Eichmann in Jerusalem: how do you execute a man whose actions are not just lawful at the time he makes them, but are dictated by that law, and how does this apply to the very man who makes the law? Nor is there any sense in A Wild Justice of any other general cultural context or ethical question that might suggest the moral dissonance involved in selectively determining which executions the state may properly undertake. And don’t be fooled by my use of the determinate article: one of the fictions we currently entertain is that there is an abstracted “state” that authorizes execution, and that state is not, for purposes of civilized discourse, Texas. As long as any state executes, the United States is an executioner. And killing Hitler is no more or less an argument for the American death penalty as killing degenerates was for German eugenics. As it turns out, young Foucault was right — there is kinship between killers: legal violence strikes as privately and seemingly inevitably as the lynch mob or the serial strangler, and the imprimatur of justice is that of the hanging tree as found in nature. Whether or not we might learn to kill indifferent to race, or construct other objective criteria for our capital punishments, seems to be profoundly beside the point, for, in the words Mandery quotes from gambling-man Meltsner, “More important was just the kind of person I was.”